United States v. Hunsaker

United States v. Hunsaker, 65 F.4th 1223 (10th Cir. 2023) (EDOK): The panel reverses the district court’s application of the aggravating role enhancement for manager/supervisor under USSG § 3B1.1(b). Its analysis is helpful when arguing against an aggravating role enhancement. The district court believed the government and the probation office established that Hunsaker was a manager or supervisor as defined in § 3B1.1(b). The panel disagreed. This 3 level enhancement requires proof that the accused exercised some degree of control over others or was responsible for organizing others for the purpose of carrying out the crime. Put simply, its essential elements are control and organization over subordinate participants. (The panel noted that the “organizer” enhancement does not require proof “of underlings in the endeavor.”). Here, the government did not prove Hunsaker managed or supervised one or more other participants in the drug trafficking organization. The evidence on which it relied consisted of mere “conclusions, not facts.” For instance, a co-conspirator’s remarks that Hunsaker was “second in command” and was “deeply involved” with the leader’s “distribution activities,” said little about whether he was a manager or supervisor at all. Neither the relationship alone, nor the knowledge Hunsaker acquired about the organization establish that he had “the necessary authority and control over another.” To emphasize this point, the panel pointed to 3 factors it said did not prove “decision making authority or control over a subordinate”: (1) agreeing to help the leader retaliate against another; (2) discussing with the leader the need to purchase more drugs; and (3) informing the leader of possible future customers and alternative sources. In the panel’s view, “talk is cheap”: the enhancement must be predicated on “evidence [the] defendant acted in a supervisory or managerial capacity independent of any intimate connection to a major player in the criminal activity.”